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A RXIVIESW 

OF THE I'KOCEEDINGS 

^0 fl)aiigc a Ptiuatc toaii, 

INTO A 

Town Way, in the Town of Medford. 

With the Deeds and Docuiiieuts relaliiis; Tlierelo. 



THE subscriber, in the belief that many erroneous opinions 
have been industriously circulated respecting his right to a pri- 
vate way, originally laid out for his use and benefit by the 
Selectmen of Medford, and approved and recorded by the Town, 
and by him built and since maintained at a great expense, and 
thinking that he can trace the source of them all in the 
untbunded claims which Deacon John Synimes has made upon 
his property, (which claims have been more pertinaciously 
urged as their apparent justice has diminished by an accurate 
examination of the whole subject,) he takes this opportunity to 
appeal to his fellow citizens, and, by a plain narration of the 
circumstances, substantiated by documentary evidence of the 
most conclusive kind, to place the whole matter in a clear light, 
and enable them to make a correct judgment upon it. 

In 1828, I had a lease of a pasture of Josiah Symmes, (now 
deceased,) which Abel Stowell and myself were in the habit of 
passing through to get into the County Road; I removed the 
bars which were there when I took the lease, and erected a 
large gate in their room. Mr. Stowell owned a small piece of land 
between this pasture and my estate, and across it he put up a 
fence with bars, in that place where the descent was so steep 
that it was dangerous lor a horse to go down with a heavy load. 
On one occasion, while I was taking out the bars, the load 
pressed the horse against the fence, brought him down on his 
haunches, and, had not my men been within call, he would 
doubtless have been seriously injured. A short time after, my 
son and daughter were riding down the road, and, while the 
former was removing these bars, the horse took fright, and ran 
into the woods; and my daughter, in jumping from the vehicle 
while the horse was in full speed, was considerably hurt, and 
nari'owly escaped with her life. These facts I stated to Abner 
Bartlett, Esq., who then was my friend and counsel, and he 
advised me to petition for a private way. I did so. The 
Selectmen thereupon appeared on the premises, and heard the 
parties, Synimes and Stowell. Mr. Symmes did not object, but 
Mr. Stowell remonstrated. The Selectmen, however, overruled 
his remonstrance, and laid out the private way according to law 
and my petition. When the Town in public meeting acted 
upon the doings of the Selectmen, Mr. Stowell presented a 
1 



( '^ ) ^ M 



^i"; %^^ 

^ M'"^ 



written remonstrance against them. The Town, at the afore^ 
said meeting, notwithstanding the remonstrance of Stowell, con- 
firmed the proceedings of the Selectmen, and ordered them to 
be recorded. See the certificates marked No. 1. 

[NO. I.] At a legal Town Meeting in Medford, on the 
first Monday of November, one thousand eight hundred and 
twenty-eight, to hear and act upon the doings of the Selectmen 
relative to laying out a road from Robert Bacon's hat factory in 
said Medford, to the highway leading by Capt. John Symmes' 
dwelling-house, to the market place, agreeable to the petition 
of said Bacon. 

The Selectmen laid before the Town the following proceedings: 
' To the Selectmen of ike Town of Medford, in the County of 
Middlesex. The petition of Robert Bacon, of Boston, in the 
County of Suffolk, hatter, respectfully represents, that he is the 
owner of a piece of land, and water-mill privilege in said Med- 
ford, with a dwelling-house and other buildings and machinery 
thereon, which he improves for the manufacture of hats; that 
his said establishment is situated a little to the north of the high- 
way leading by the dwelling house of Capt. John Symnies, in 
said Medford, to the market-place there ; that he has no con- 
venient way to pass from his said establishment and highway — 
he therefore requests the Selectmen to lay out a way from his 
said establishment, beginning a little below the dam, at his land, 
running in a southerly direction to the highway aforesaid, at or 
near the great gate, opening from said highway into land of 
Josiah Symmes, agreeably to the form of the statute in such 
case provided. ROBERT BACON. 

Medford, Sept. 30, 1828. 

Town of Medford, Oct. 30, 1828. 
We, the undersigned, Selectmen of Medford, upon the fore- 
going petition proceeded to view the route of the road therein 
prayed for, having first duly notified the propiietors of the lands 
situated in said route, viz: Josiah Symmes, and Abel Stowell, 
who met with us on the occasion, and after due consideration of 
the subject, and of all suggestions and representations made to 
us relative thereto, being of opinion that the prayer of the peti- 
tion was reasonable and ought to be granted, we have laid out a 
private way for the use of said Bacon, as follows, viz: beginning 
at a stake on his land on the northerly side of the run of water 
belonging to said Stowell, a little to the east of the bridge, and 
from thence we run a line southerly over land of said Stowell, to 
a stake by land of Josiah Symmes, to the east of the gate in said 
StowcH's fence, from thence nearly in the same course over land 
of said Symmes, to a cedar tree standing about a foot from, and 
ne.xt to, the easterly gate, part of the great gate which opens into 
the highway leading by the dwelling-house of Capt. John 
Symmes, as mentioned in said petition, and we have laid out said 
private wiiy on the westerly side of said line, run as aforesaid, 
over the land of said Stowell, twenty feet wide in every part, 
excepting only such place or places as may be straitened or 



( 3 ) 

narrowed by some building or buildings, now standing partly 
thereon, and over said Symnios' land the whole width or space 
between said line, run as aforesaid, and the land of Samuel 
Hutchinson, on the west thereof. 

TURELL TUFTS, ) Selectmea 

JOHN r. CLISBY, S of 

LEONARD BUCKNAM, ) Mcdford. 
All which proceedings and doings of the Selectmen having 
been read and duly considered by the Town, 
Voted, that the same be accepted and recorded. 
A copy of the Town Book of Records in the Town of Med- 
ford. AuNER Bartlett, Town Clerk. 

Mcdford, JYov. 9, 1835. 
Tu whom it may concern. 
The Selectmen of Mcdford hereby certify, that the said road 
leading from the highway to Robert Bacon's hat factory in Med- 
ford, was laid out as a private way for his special use and ben- 
efit, and that the town of Medford have no interest therein which 
can interfere with said Bacon's enjoyment and control thereof, 
and are under no obligation to support or maintain it. 

TIMOTHY COTTING, ^ Selectmen 
ISAAC WELLINGTON, { ^eiecimen 
ISAAC SPRAGUE, j ^j^^^-^^^j 

S. BLANCHARD, J 

Medford, March 3 1st, 1835. 
Mr. Robert Bacox : — Dear Sir. In answer to your inquiry 
relative to your road leading from your house into the public 
highway in Medford, I can state for the information of all con- 
cerned, that the road was duly laid out by the Selectmen of 
Medford on your application as a private way for your use and 
benefit. It was done according to the form of the Statute in 
such case made and provided, and submitted to the consideration 
of the town and by the town accepted, and ordered to be recor- 
ded, and I believe is a private way to all intents and purposes of 
the Statute; it follows, therefore, that no owner of the land over 
which the road is laid can do any act upon it, whereby the use 
and enjoyment of it shall be abridged, interrupted, or disturbed, 
without becoming answerable to you in damage therefor. 

ABNER BARTLETT. 

After I received my certificate, attested by the Town Clerk, 
giving me the light to make my road through the land of Symmes 
and Stowell, I then graded, graveled, and rolled it. I paid the 
late Josiah Symmes for all the land of which my road was made, 
to his full satisfaction. I took no deed from Symmes, because I 
considered my certificate from the town suflicient. I ofiered to 
pay Mr. Stowell any damages which might be awarded him, but 
he, enjoving the privilege of traveling on the road, claimed none. 

In 183*2, the Boston and Lowell Rail Road Corporation, by 
their agent, caused the road to be destroyed. For the manner 
in which this was done, see my letter to the Presidrnt and 
Directors of said Corporation, marked No. 2. 



( 4 ) 

[NO. 2.] To the President, Directors, and Company of the 
Boston ^ Lowell Raihvay Corporation, and their Agent. 

Gentlemen : — I respectfully ask your attention to the subject 
of the following communication. 

In making the Rail Road, near my estate in Medford, great 
damage has been done to a cross-road, leading from the County 
road to my premises. A large portion of the hard surface of the 
road made by me at great expense, Stc, a great quantity of earth 
have been taken away. To acccomodate the Rail Road the 
cross road has been lowered, and high, steep banks left on each 
side of it. To pass with carriages and teams, from the County 
road to my Factory and houses, is thereby rendered difficult, 
and, unless something be done speedily, will be impassable. 

The Road, before your agents spoiled it, was in perfect order, 
with a regular, easy descent from the County Road to my bridge 
and buildings. But now, at least one half of it is soft sand, and 
there are several abrupt pitches in it, which make it uncomfort- 
able and unsafe. In winter this cross-road will be filled with 
snow, which, in the present condition of the road and banks, 
cannot be thrown out of it. The road has been examined by 
several respectable persons, and is pronounced by all of 
them to be an intolerable nuisance, that will be daily growing 
worse. 

The proper course to be pursued, in the opinion of them and 
myself, is to graduate a small part of the County Road and said 
cross-road to my bridge, in such manner as to produce a grad- 
ual, easy descent; to gravel the surface so as to render it firm, 
and to remove the high banks which your agents have caused on 
each side of the cross-road, so that it may not be rendered 
impassable by snow. 

Another course, recommended by several, is to turn the cross- 
road through a small valley near the County Road, and between 
it and the buildings recently occupied by Mr. Stowell. I shall 
gladly explain to any of your agents the above modes of obvia- 
ting the present evils, whenever they will meet nie at the 
premises. 

I am sorry to trouble you, Gentlemen, on this subject, which 
is but one of the many causes I have for complaint. Few have 
suffered more than myself by the works of the agents of your 
Company ; I do not know any one person who has suffered so 
much ; but I have patiently endured it, relying on the justice of 
the Company to do right when the time should arrive for the 
consideration of my claims. But, as I will not knowingly 
injure, or trample on the rights of my neighbor, 1 cannot submit 
quietly to see my own rights attacked or sported with : and I 
cannot longer suffer in silence the evils inflicted on me, and all 
in my employment, by the acts of your agents at the above road. 
I therefore respectfully request you, Gentlemen, to cause such 
measures to be adopted speedily in relation to it, as shall give 
me as good a road as you found. Your ob't serv't, 

(Signed.) Robert Bacon. 
A true copy. Attest, Henry Bacon. 
(Except date, which is believed to be October, 18.'^'-2.) 



( 5 ) 

The Corporation aftei-wards repaired the road as tar as tliey 
had dug it down. I then had a survey made through my pine 
woods, with the intention of cai lying the road through them. 
See Mr. Jaquith's statement, marked No. 3. 

[NO. 3.] Mr. Bacon :—Sir. I find by the profile of your 
road, that you can have a road as easy and as good as it was 
before the Rail Road was made, and I think it can be made 
through the hollow, as cheap as in the old road, for there must 
be a great deal of earth put in the hollow, let it go which way it 
will, and I think, to pave the gutters and do the work as it 
should be done, that it cannot cost less than four hundred 
dollars. With great respect, your humble servant, 

(Signed.) Nathan Jaquith. 
Woburn, Nov. 5th, 1835. 
The above is a true copy. 

(Attest.) J. Hudson. 

But we finally concluded to continue the Road, beginning 
where the Rail Road Corporation left it. I lowered it and dug- 
through a hill about 7 feet deep, to ease the ascent, and also 
lowered the County Road. I was also obliged to make a curve 
in the Road, for the same purpose. Sometime after this was 
done, there came a very heavy rain, which gullied that part of it 
which the Corporation had repaired, being the eastern side. 
For a description of this, see Mr. Mayhew's statement, marked 
No. 4. 

[NO. 4.] Medford, Feb. 12, 1842. 

Sir : — At your request I have measured the gutter which 
was so badly gullied, on the east side of the Private Road, and 
find it was gullied for about 20 rods in length, from 2 to 7 feet 
wide, and from 1 to 4 feet in depth. About 20 rods in length 
were fenced out from the road, on account of the danger of 
traveling. The traveled part of the road will average about one 
rod in width. Yours respectfully, 

Mr. Robert Bacon. T. F. Maviiew. 

In consequence of the gullies I was obliged to fence out the 
road, which narrowed it so much that there was not room for 
one carriage to pass another. After this the Rail Road Corpo- 
ration agreed to refer my claims. The fence remained till after 
the referees had reviewed the premises. They saw the situation 
of the road, and awarded me 250 dollars damages. (I will satisfy 
any gentleman that I expended the full amount of 250 dollars to 
obtain a settlement of my claim with the Company. 1 am there- 
fore minus all the money expended upon the Road.) I then 
went on and repaired it again, which made the third heavy 
expenditure upon it, exclusive of removing the fence twice on 
the east side, and once on the west, in consequence of the caving 
ot the banks. The late Josiah Symmes had discontinued pass- 
ing through the Pasture, in consequence of a new County Road 
being laid out through his land, and much nearer his house. 
In proof that he did discontinue it, I adduce the following facts. 



( 6 ) 

First, he offered no objections to Stowell's making a fence with 
bars. Second, he voluntarily excluded himself and his heirs 
and assigns from the privilege of passing, by not reserving the 
right to pass over the land which he sold me. See Deed 
marked 5, as follows : 

[NO. 5.] Know all men by these presents, thati, Josiah Symmes, 
ofMedford, in the County of Middlesex, Yeoman, in consideration 
of seventy-five dollars, paid me by Robert Bacon, of Boston, in 
the County of Suffolk, hatter, the receipt whereof is hereby 
acknowledged, do hereby give, grant, sell, and convey unto the 
said Bacon, a strip of land in said Medford, adjoining to the 
northerly and to the easterly sides of said Bacon's land then, 
whereon his hat factory now stands, bounded thus : beginning 
at the northwesterly corner of said Bacon's land, thence the line 
runs northerly forty-one and a quarter feet to a stake, then turn- 
ing, it runs easterly in a direction parallel to the north line of 
said Bacon's land, one hundred and thirty-seven and a half feet 
to a stake ; thence southerly in a right line one hundred thirty- 
five feet and a quarter to a stake at the pond ; thence westerly 
in the shortest course one rod to the easterly line of said 
Bacon's land ; thence northerly on said Bacon's land to the cor- 
ner ; then westerly by the same to the point begun at as 

by the plan hereto annexed fully appears, with all the privileges 
and appurtenances to the premises in any way belonging or 
appertaining. 

To have and to hold the aforegranted premises unto him the 
said Bacon, his heirs and assigns, to his and their use and 
behoof forever. And I, the said Josiah Symmes, for myself, my 
heirs, executors, and administrators, do covenant with the said 
Bacon, his heirs and assigns, that I am lawfully seized in fee of 
the aforegranted premises; that they are free of all incumbrances; 
that I have a good right to sell and convey the same to the said 
Bacon as aforesaid ; and that I will, and my heirs, executors 
and administrators shall warrant and defend the same to the said 
Bacon, his heirs and assigns forever, against the lawful claims 
and demands of all persons. And it is hereby understood and 
agreed, by and between the parties to these presents, that the 
said Bacon, his heirs and assigns, shall build the whole of the 
fence upon the above partition line, betwixt the land hereby con- 
veyed and the land of said Symmes, and support and maintain 
the same forever, at his and tlicir proper expenses ; and for that 
purpose shall at all times have right to go upon said Symmes' 
side of said line, and set the posts necessary lor said fence upon 
that side, so as that boards in said fence shall always be pre- 
cisely upon said line. In witness whereof, I, the said Josiah 
Symmes, and Betsey, wife of said Josiah, for the purpose of 
releasing her title to dower in the aforegranted premises, have 
hereunto set our hands and seals, this twenty-fifth day of Feb- 
ruary, in the year of our Lord eighteen hundred and thirty. 

Josiah Svm3Tes. 
Signed, sealed, and de- 
livered, in presence of 



( ^ ) 

The word " rods " Avas cancelled, and the words " feet," " at 
the pond," and " one rod," were all interlined before signing 
and sealing. Ahner Baktlett. 

Henry Baxter. 

JMiddlesex, ss., February 2.5th, 1830. Then Josiah Symmes 
acknowledged this instrument to be his irce act and deed, 
before me. Abner Barti.ett, Justice of Peace, 

Middlesex, ss., June 5th, 1830. Received and recorded in 
the Registry of Deeds, Book 298, Page 80. Plan recorded also. 

Attest, W. V. Stone, Register. 

Third, by requiring me to give a covenant or agreement, in 
writing, that I would not ask for a Road by his house. See 
copy of said agreement, marked G. 

[NO. 6.] Whereas I, Robert Bacon, have this day taken a 
deed from Josiah Symmes, of a small strip ot" land, in Medford, 
adjoining my land where my hat factory stands, in Medford ; 
and whereas it was part of the agreement that said Symmes, on 
the purchase of said land, that I, said Bacon, should never ask 
for, nor make, or cause to be made, any road from the land 
described and conveyed to me in and by said Symmes's deed, to 
the County Road, which passes from Captain John Symmes to 
the west side of Woburn. Now, therefore, I, the said Bacon, 
in consideration of the premises, do hereby promise to said 
Symmes that I never will apply to any court or tribunal what- 
ever, for any such Road, nor make, nor cause to be made, any 
such Road forever. In witness, &c. Signed, sealed. 

(The above is from a copy in the handwriting of Abner Bar- 
tlett, Esq., the original of which was signed by Robert Bacon.) 

I built a bridge over the main river, and afterwards fenced 
cut a passage way from it to my north line. Josiah Symmes, 
who bought the residue of his father's estate, after the widow's 
dower was set off, sold a small piece of the land, which I bought of 
his father, to his brother Johnson Symmes, viz. two rods and a 
half on one line, and on the other about twelve feet, accommo- 
dating this line to the breadth of my passage way. See extract 
from Deed, marked 7. 

[No. 7.] Thence southerly, by the easterly side of the land, 
two and one half rods, to a post in the I'ence; thence westerly, 
across the land, about twelve feet, to a stake and stones. 

This land I bought of his father. See his Deed. 

This same piece of land has been resold by his brother to 
John H. Bacon. See extracts from deed from Johnson Symmes 
to John H. Bacon, and extracts from other deeds. 

[No. 8.] Extract from Deed of Johnson Sijmmes to John H. 
Bacon, dated June 3, 1839. 

" Thence southerly, by the easterly side of the land, two and 
one half rods, to a post in the fence; thence westerly, across 
the land, about twelve feet, to a stake and stones." 

This last described piece of land, is land that I bought of the 
late Josiah Symmes. 

Extract from Deed of Abel Stowell to the Boston and Lowell 



( 8 ) 

Rail Road Corporation, dated November 24, 1831. Recorded 
in Book 308, page — . " Excepting a private way, for the use 
of Robert Bacon, aforesaid, as the same was laid out by the 
town of Medford, by their vote passed the 13th day of October, 
A. J3. 1828." 

The above extract goes to show that the Corporation has no 
control over said way by their Deed, nor, by their Charter, 
have they any control over high ways or private ways, except 
to raise or lower them for the accommodation of the Rail Road. 

Extract from a Deed from Jacob Coggin, and Mary, his wife, 
dated April 12, 1820. Recorded in Book 203, and page 199. 

"And we do covenant with the said Samuel Hutchinson, his 
heirs and assigns, that we are lawfully seised in fee of the afore- 
granted premises; that they are free from all incumbrances; 
that we have good right to sell and convey the some to the said 
Samuel Hutchinson, and that we will warrant and defend the 
same premises to the said Samuel Hutchinson, his heirs and as- 
signs, forever, against the lawful claims and demands of all 
persons." 

The above extract goes to show that the Rev. Mr. Coggin 
did not consider that the petitioners, or any one else, had any 
right in the premises, nor does the petitioner's (John and Mar- 
shall Symmes) great grandfather's deed to their grandfather, 
give them or his heirs such rights as the petitioners lay claim to. 
See extract from Wm. Symmes' deed, their great grandfather 
to their grandfather, to John Symmes, his son, dated June 17, 
in the first year of his majesty's reign, A. D. 1761. "With 
liberty of passing and repassing to the same, when will be con- 
venient and do the least damage." 

Any one viewing the premises will see that no regard has 
been paid to the last clause, viz. " And will do the least dam- 
age." Mr. Samuel Hutchinson told me that he would never 
pay the mortgage, so long as the petitioners cut up his pasture 
as they did. He kept his word, and lost his farm. 

To prove that I bought all the land east of the line, I publish 
the deed, or indenture, from Johnson Symmes to Robert Bacon. 
See Deed, No. 9. 

[No. 9.] This Indenture, made the third day of May, in the 
year of our Lord one thousand eight hundred and thirty four, by 
and between Johnson Symmes of Medford, in the County of 
Middlesex, of the first part, and Robert Bacon of the same Med- 
ford, of the other part. 

Whereas, the aforesaid parties have lately altered the old line 
betwixt their respective lands, .situated to the West of said Ba- 
con's barn, in said Medford, and have erected a new picket 
fence on the new line, mutually agreed on, and established be- 
tween them, running from the river in a Northerly direction 
three hundred and thirty nine feet and a half, by which alteration 
the said partition line has been carried, in most parts, a little to 
the Westward of its former position, whereby several small 
pieces of land are taken from said Symmes' land and added to 
land of the said Bacon. 



( 9 ) 

Now this Indenture witnesses, that the said Symmes, in con- 
sideration of the premises, and of ten dollars paid by the said 
Bacon, the receipt whereof is hereby acknowledged, does by 
these Presents, for himself, his heirs and assigns, grant, ratify, 
and confirm unto the said Bacon, his heirs and assigns, the 
aforesaid line thus newly established and fenced, forever; and 
release and quit claim unto hirn, the said Bacon, his heirs and 
assigns, each and all those small i)ieces of land taken off troin 
the said Symmes' land, and added to the land of said Bacon, on 
the Easteily side of the new fence as aforesaid, forever. And 
the said Symmes for himself, and his hiers, executors, adminis- 
trators and assigns, doth covenant with the said Bacon, his heirs 
and assigns, that he the said Symmes wi.l, and his heirs and as- 
signs shall, well and faithtully maintain, uphold and suppoit the 
Northerly part of the fence on said new line, to the extent of 
one hundred and thirty one feet, at his and their own proper 
costs and charge forever. 

And the said Bacon in consideration of the premises, and of 
ten dollars paid by the said Symmes, the receipt whereof is 
hereby ackowledged, does hereby, for himself, his heirs, execu- 
tors, administrators and assigns, covenant with the said Symmes, 
his heirs and assigns, that he, the said Bacon will, and his heirs 
and assigns shall, maintain, uphold and support the Southerly 
part of the said fence running iiom the river two hundred eight 
feet and one half, to the part supported by said Symmes as afore- 
said, forever. In witness whereof, the aforesaid parties, to these 
presents have hereunto interchangeably set their hands and seals 
the day and year first above written. 

Signed, sealed and delivered, } JOHNSON SYMMES. 
in presence of <, ROBERT BACON. 

The words " executors, administrators and assigns," were in- 
terlined before signing. ABNER BARTLETT. 

Middlesex, ss. May 5th A. D. 1831. Then the above named 
Johnson Symmes and Robert Bacon, acknowledged the forego- 
incr Instrument to be their free act and deed before me, 

° ABNER BARTLETT, Justice of the Peace. 

Middlesex ss. June 15, 1835. Received and Recorded in 
the Registry of Deeds, Book 342, Page 20'2. 

Attest, WM. F. STONE, Reg'r. 

All the difficulties between the petitione:s, John and Marshall 
Symmes and myself, have grown out of their unjust claims on 
my property, as follows. See Affidavit, No. 10. 

[jVb. 10.] Affidavit of Robert Bacon to he used before the Select- 
men of Medford on the application of John and Marshall 
Symmes for a private road. 

In 1835 I called on Mr. Patrick T. Jackson to buy some land 
he had to sell near my premises. He told me he would not sell 
the land without the Stowell place. I could not agree with him 
for the Stowell place, and left him. I then asked Dca. John 
Symmes to buy the land, and I would take part of it. He told 
me his brother Marshall would like part of it. I then told him 
2 



( 10 ) 

to buy it, and I would take one third part of it ; that part which 
joined my premises, and pay the difference. I paid thirty-three 
and one third per cent, more than the average cost. I gave 
Dea. John Symmes two hundred and fifty dollars, (which was 
more than enough to pay my part of it) before he got his deed. 
After they got their deed they had me surveyed about one quar- 
ter part of it. They then claimed of me the right to pass over 
my land. I remonstrated against it. I told them whoever 
bought the Stowell place would probably build, and that would 
cut them off, and if I bought, I certainly should. Dea. John 
Symmes has claimed for himself and others the right to pass 
over the land I bought of Gould and Pierce, and the land the 
south side of the bridge, also a right to pass over my bridge, 
over land I bought of Stowell, and over land I bought of Samuel 
Hutchinson and Rev. Mr. Coggin. Also to cross the river over 
land he bought of Patrick T, Jackson for me. All my deeds 
deny any and all the claims he makes. Dea. Symmes shows 
deed from William Symmes to his son John Symmes, dated the 
IGth of June A. D. 1761. Extract from said deed—" with lib- 
erty of passing and re-passing to the same where will be conve- 
nient and will do the least damage." When I first stated to 
Dea. Symmes that I was going to build, I observed to him that 
Mr. Johnson had a piece of land he wanted to sell, joining their 
land and fronting Grove Street. I proposed he should buy the 
land and sell that adjoining me (meaning the land north of the 
Rail Road;) if he did not find a purchaser on the west side, 
although I did not want it, I would buy it of him. He said I 
had no right to build on my premises. I proposed to him to 
put both of our deeds into the hands of a disinterested person, 
he to determine our rights. Sometime before I commenced 
building, one morning as I was in conversation with him, I in- 
vited him to come to my house that evening with his wife, or I 
would come to his with mine, and talk over the subject of our 
rights, observing that our wives would keep us cool. I agreed 
to call on him with my wife. I came home and told my wife on 
my return from Boston, she must go with me in the evening to 
Dea. Svmmes, and told her what for. In about one hour I start- 
ed for Boston. When I got near the blacksmith's shop, John 
and Marshall Symmes accompanied by a gentleman I did not 
know, came out and forbid my building in the presence of said 
gentleman. Marshall Symmes said I was robbing him and ta- 
king the bread out of his children's mouths. Dea. Symmes said 
to me, you have quarreled with every one of your neighbors, 
and said he was in hopes to live in peace with me. I pointed 
to Capt, La Bosquet's, and asked him if I had ever quarreled 
with him. I consulted my professional friend and he advised 
me to build as I have done. ROBERT BACON. 

Sworn to before B. Rand, Justice of the Peace. 
March 20th, 1841. 

Notwithstanding their treatment of me I have shown a dispo- 
sition from the first to accommodate them. Before I erected 
the building they forbid me to put up on my own land, I got 



( 11 ) 

Mr. Joseph Gould to measure the height of the Rail Road 
bridge, and the height of the Rail Road, intending to shoot over 
the second story of the building, so that they and myself might 
drive under. One object of my erecting the building was that 
I might pass from the second story of the same on to the Rail 
Road, to which there is now a temporary bridge. My profes- 
sional friend advised me to build the building as it now is, in or- 
der to make them prove their claims, if they had any. The re- 
sult has proved that they had none. When Dea. Symmes was 
asked how his uncle came to give a warrantee deed of the land, 
he answered, "He was foolish." The reader can make his 
own comments. 

Extract from a deed from the late Josiah Symmes to John L. 
Richards and George Sullivan. Book 210, page 519. "That 
I am seised in fee of the premises afore described, and that I 
have good right to sell and convey the same in manner afore- 
said, and tliat I will warrant and defend the same to John L. 
Richards and George Sullivan, and their heirs and assigns, 
against the lawful demands of all persons whomsoever." All 
the land mentioned in this deed is now my property, with the 
single exception of that part through which the Rail Road 
passes. 

After the town in public town meeting had refused to confirm 
the doings of the selectmen in regard to the laying out a town 
way, by a vote of 51 to 36, — The next morning 1 had a letter 
written, signed, folded, and directed to Dea. John Symmes, in 
which letter I stated, that being disposed to render good for 
evil I tendered to him, his brothers John and Edmund, and his 
mother, a sufferance right to pass over my premises. When I 
was about to seal the said letter the thought struck me that I 
would take it with me to Boston, and show it to my counsel, 
Benjamin Rand, Esq. I did so, he advised me not to tender 
them a sufferance in writing, but that if I insisted on writing to 
them he wished me to alter the letter. He took his pen, and 
made the alterations for me to copy. On my return home 1 
learned that the petitioners were going to apply to the county 
commissioners, and I thought it best to not interfere, and with- 
held the letter. It is worthy of consideration, that after Dea. 
Symmes found he could not sustain his unjust claims upon my 
land, he changed his position, and claimed a right from the Rail 
Road Corporation, the agent of which, he says, gave him the 
right to come down the road, pass under the bridge, and over 
the aforesaid land. There has been a great deal said about 
some propositions offered to me which I refused to receive. 
This requires an explanation, In October last my S(,n had 
some conversation with Dea. Symmes, about an exchange of 
rights. Dea. Symmes oflered to give a right to pass through 
the petitioner's pasture to the canal, a right which I considered 
of little consequence. I told my son I was willing to accommo- 
date them, meaning that I would give and take a svfferancc right. 
I had before refused to give a legal right. Dea. Symmes was 
asked at one of the meetings of the selectmen, what kind of tt 



( 12 ) 

right would satisfy him, and he answered, a legal right for him 
and his heirs forever. In the same month a written proposition 
was sent to me by Dea. Symmes. See copy of proposition, 
marked 11. 

[JVo. 11.] To all people to whom these presents may come, 
I, Robert Bacon, of Medford, in the County of Middlesex, sends 
greeting, Whereas John Symmes, Marshall Symmes, and Ed- 
mund Symmes, all of said Medford, Loring Etnerson of Woburn, 
in said County, and the widow, heirs, and devisees of John 
Symmes, late of said Medford, deceased, are seized of certain 
lands situated in said Medford, on the northerly side of the Bos- 
ton and Lowell Rail Road, some of them as tenants in common, 
and in in possession, reversion or remainder, and Whereas 

the above mentioned persons have no convenient way of passing 
from Grove street, in said Medford, to their said lands, Now 
know ye, that I, the said Robert Bacon, willing and desirous to 
accommodate them with such a Way, and in consideration of 
one dollar, paid to me by the aforesaid persons, interested in the 
above mentioned lands, have given and granted, and by these 
presents do give and grant unto the said John, Marshall, Ed- 
mund, Loring, and the widow, heirs and devisees of the said 
John Symmes, deceased, their heirs and assigns, a right of Way 
to pass and repass with their cattle, teams and carriages, or 
otherwise, from said Grove street, in, through and over any and 
all my lands, lying on that route, and in the course and direction 
of the Way now used by myself, in passing from said street to 
my dwelling house, to the Northerly side of said Rail Road, 
then to turn towards the West and pass betwixt the said Rail 
Road and my new building, standing on the Westerly side of 
the said Way to my dwelling house, and from said new building 
to the entrance or beginning of the Way reserved by the said 
John and Marshall Symmes, in and by their deed of land to me, 
dated the day of in the year recorded 

in the registry of Deeds for said County, Book Page 

which Way be ever for a particular description of said reserved 
Way, and in, through and along tlie said reserved Way, to the 
land of the said John and Marshall Symmes, from whence it is 
understood, the said persons intejested as aforesaid, all have a 
Way to their ie>pective lands, situated as aforesaid, the said 
grantees, their heirs and assigns, always shutting and putting up 
bars and gates, which shall be necessarily placed upon the said 
Way by the said Bacon, his heirs or assigns, upon passing the 
same, and the said Bacon, his heirs and assigns, holding or occu- 
pying the said lands, or any of them, over which the said Way 
is hereby granted, to maintain and keep the said way in suitable 
repair, lorevcr, at their own proper wits and charge. 

And the said Bacon, for himself, his heirs and assigns, holding 
or occupying the said lands, or any of them, over which the 
said Way is above granted, does hereby covenant with the said 
grantees, their heirs and assigns, holding or occupying the said 
lands situated on the Northerly side of said Rail Road, as afore- 
said, that they, said gi-antees, their said heirs and assigns, here- 



( i:^ ) 

after holding or occupying any of the said lands, last above men- 
tioned, shall and may, from time to time, and at all times here- 
after, peaceably and quietly have, hold and enjoy, the Way 
hereby and heroin described and granted, in suitable condition 
and repair, without let, hindrance, neglect, demur or inteiruption 
of the said Bacon, or any other pei.son lawfully claiming, by, 
from, or under him, the said Bacon, the said grantees, their 
heirs and assigns, always shutting and putting up the bars and 
gates as aforesaid. 

A true copy, attest, C. N. Bacon, 

This proposition (of which the above is a copy) bears no date, 
but it was handed to me about the fifth of October. The mod- 
esty of its request is worthy of particular note. It required of 
me not only to give tliem a Road, but for me and my heirs to 
keep it in repair for them and their heirs forever. 

I, being sick at the time, did not read the paper containing 
the proposition until a week or fortnight after it was received. 
When I did read it, I refused to agree to it, on account of the 
preposterousness of the claims, and declined receiving any more 
propositions from the Petitioners. On Saturday, the 6th of No- 
vember, 1841, their Counsel employed a man to offer me some 
new proposals, but I refused to consider them, because being a 
friend of truth, and having before said I would receive no more 
propositions from that quarter, as those I had already received 
were not grounded in right and justice, I should be inconsistent 
if I listened to any more proposals. Dea. Symrnes, as I am in- 
formed, represents me as having threatened to prosecute him for 
trespass, for travelling on (what was) my Road. This is incor- 
rect. I never objected to his, or any man's travelling the Road, 
as much as they pleased, and I never threatened to prosecute for 
any trespass committed, but on one occasion, and that had noth- 
ing to do with the Road, as appears by Mr. Lyon's certificate, 
appended, (No. 12,) when I cautioned him against going on my 
land. 

I hereby certify, that when Mr. Bacon called me as a witness, 
it was to hear him caution Messrs. John and Marshall Symrnes 
not to trespass on land beyond his Road. No fault was found 
with their travelling the Road. Thomas U. Lyon. 

Slojieham, Janiiury IG, 184!2. 

Dea. S. has said a number of things that he had better not have 
uttered. To show the disposition of Dea. Symrnes to prosecute me 
for trespass, I will state the following fact. On the day on which 
the selectmen were on the premises to lay out the road, Dea. 
Symmes inquired, with a great deal of earnestness, who had been 
on his land with a cart. I replied, that I had sent on a horse and 
cart, for the purpose of removing some of my property, which 
the freshet had carried there. I then asked Mr. Gragg, the 
chairman of the selectmen, (who is a legislator,) if any man had 
not a right to go on to another's land, and take oil" his property, 
which the freshet had carried on. He answered, yes. There- 
upon the Deacon found there was no chance, in this instance, for 



( 14 ) 

a prosecution. To give some idea of the pertinacity with which 
Dea. Symmes not only defends his own property, but builds up 
imaginary and unreasonable claims upon that of others, it may 
not in this connection be out of place to remark, that he denies 
that I have any right to cross over that part of the river to which 
I have just alluded, which runs through my own lands on both 
sides. The spirit of exclusiveness here manifested on imaginary 
right, cannot be charged upon me with regard to real ones, for 
the private way which I built has always been as free as any 
other road in the commonwealth to any who chose to avail them- 
selves of its conveniences. The reason that I object to having 
the control of this way taken from me, (apart from its being an in- 
vasion of private rights,) is not that I desire to exclude others 
from the benefit of it, but to prevent others from altering it to 
suit their purposes. I have been to the expense of its construc- 
tion for my own convenience, and certainly considered, at the 
time, that the assurance of the selectmen, that it was a private 
way for my exclusive benefit, and that the town had no interest 
therein which could interfere with its enjoyments and control by 
me, backed as it was by the legal opinions to the same eft'ect of 
the present learned counsel for the petitioners, was a sufficient 
guarantee of my right to justify any expense I might incur in 
building it, to suit my object. When the Lowell Rail Road 
Corporation invaded my right in such a manner as to make the 
way useless for the purpose for which it was originally construct- 
ed, and so to injure it as to render travelling dangerous, that cor- 
poration, to ail intents and purposes, became liable to me for the 
damage, and was as much bound to reimburse me therefor, as if 
they had damaged any other portion of my private property; and 
in effect so it was considered by them, whatever might have 
been the justness of their conceptions respecting the extent of 
the damage. But that now the control of the road has been 
taken from me, it is not improbable that changes may be made, 
which, how^ever they may seem advantages to others, to me and 
for ray purposes will be real injuries, and the monstrous injustice 
will be committed, of first perverting the spirit and intent of the 
law, to turn private into public property, and then leaving the 
original owner, who incurred all the original expense, to have 
the least of the conveniences in the use of the way. 

I now refer to the Report of the selectmen who laid out this 
way as a town road, wherein they state that they have laid it out 
partly over the land of the heirs of the late Josiah Symmes, 
No. "l3. 

[NO. 13.] We, the subscribers, selectmen of the town of Med- 
ford, being of opinion that it would be for the convenience of 
many of the inhabitants of said tow'n, that a town way should be 
laid out from Grove street to the southerly part or branch of 
Symmes's River, so called, in said Medford, and having given 
due notice to all persons interested, we have this day laid out 
such a way, as follows : 

We begin at a point in the southerly bank or shore of said 



( 15 ) 

river, on land of Robert Bacon, in the easterly line of the private 
way heretofore hiid out by the selectmen of said town, for the 
use of said Bacon, thence we run a line southerly, over land of 
said Bacon, two rods, to land of the Boston and Lowell Railroad 
Corporation, and continuing the same course over the land of 
said corporation, to the easterly abutment of said lailroad bridge, 
thence southerly on the easterly side of the passage-way under 
said bridge, and in the direction and line of that abutment over 
land of said corporation to land of said Bacon, formerly of Abel 
Stowtdl, and over said Bacon's land in the last-mentioned course 
and direction two rods and five feet, to the line of laud of the 
heirs of Josiah Symmes, deceased ; thence southerly in a right 
line over land of said heirs in the direction of a button-wood 
tree standing on Grove street, three rods east of land formerly 
of Samuel Hutchinson, to a point eight rods from said street, 
thence southerly over land of said heirs and of said Bacon in such 
a direction as will touch without crossing said Bacon's fence on 
the easterly side of his said private way, and from point of con- 
tact the line runs southerly in the direction of said Bacon's said 
fence, as it now stands, — rods to said Grove street. 

And we have laid out the said road on the westerly side of 
said line, run as aforesaid, twenty-two feet wide in every part 
from said river to the line of the land of said heirs, excepting the 
passage under said railroad bridge, and there it is the whole 
width of said passage-way, between the abutments of said bridge,, 
and from the said line of said heirs' land, over their land the 
whole width or space betwixt the said line run as aforesaid, and 
the land of the said corporation on the west, as the fence stands 
so far southerly as their land extends, from and thence over said 
heirs land, and a small piece of said Bacon's land, the whole 
space or width betwixt the said line runs as aforesaid and the 
land of said Bacon on the west as the fence stands, to said Grove 
street. 

And we have notified the said corporation and the said Robert 
Bacon, by leaving a written notice of the time and place of our 
said meeting, to lay out said road, at the office of said Railroad 
in Boston, and causing a similar notice in writing to be delivered 
to said Bacon, seven days before the laying out of said road ; — 
and the heirs of said Josiah Symmes not being known to us, nor 
their place of residence, nor any tenant or agent of theirs being 
known to us, we caused a similar notice to be posted at the Med- 
ford House, a public tavern in said Medford, seven days previous 
to laying out the said road ; and we have awarded to said Robert 
Bacon five dollars and sixty-two cents, to be paid him by said 
town of Medford, for his damage sustained by the laying out of 
said [road ; the said Railroad Corporation, and the said heirs be- 
ing understood to claim no damages, none are awarded to them. 

Dated at Medford this 29th day of March, 1841. 

Alexander Gregg, ^ Selectmen 
James W. Brooks, > of 
JuDAH LoRiNG, ) Meclford. 

(Copy.) Attest, O. Blake, Clerk. 



( 16 ) 

We, the subscribers, certify, that the above Report of the Se- 
lectmen of Medford was read in public town meeting, April 5th, 
1841, and also Robert Bacon's remonstrance; and after debate, a 
motion was made to indefinitely postpone the whole subject, — 
which was carried, by fifty-seven in the affirmative and thirty-six 
in the negative. John Sparrell, Moderator. 

Oliver Blake, Town Clerk. 

3Iedford, April oth, 1841. 

To the Inhahilants of the Town of Medford in Toivn Meeting 
assembled. Robert Bacon, of the said town of Medford, respect- 
fully remonstrates against the acceptance by the said Town of 
the report of the selectmen of the said Town of a Town Way, 
laid out by the said Selectmen on the twenty ninth day of March 
last, from Grove Street to the southerly part or branch of Symmes 
river ; and your remonstrant begs leave to submit, for the con- 
sideration of the said inhabitants the following, among other 
reasons which he thinks may properly be urged against the ac- 
ceptance of the said report, and establishment of the Way laid 
out as aforesaid. 

And, first, your Remonstrant suggests, that, as far as it can be 
ascertained from the very indefinite description of the Way laid 
out as aforesaid, the same, or the principal part thereof, is laid 
out in precisely the same place where the said Town, but a few 
years ago, laid out a private Way for the particular and private 
use and benefit of your Remonstrant upon his petition. And your 
Remonstrant farther suggests, that the Town Way so laid out by 
said Selectmen, leads only into the premises of your Remonstrant, 
and not through or beyond them, or to any public road or thor- 
oughfare, and cannot therefore be used as a thoroughfare or Way 
through which the public, or tli»-^nhabitants of the Town of 
Medford in general, will have any occasion to or can travel. And 
your Remonstrant further suggests, that the said Town Way 
was not laid out by the said Selectmen upon the petition of any 
person or persons, nor has any reason been assigned for the lay- 
ing it out, excepting that it will be for the convenience of some 
of the inhabitants of said Town ; which your Remonstrant sug- 
gests may mean no more than two of the said inhabitants ; and 
such reason is quite insufficient to justify the laying the same 
out as a public Way, if it could be so laid out according to the 
law. And your Remonstrant suggests that from the locality and 
course and termination of the Way, it must be obvious to every 
one that the Way so laid out, cannot be used a public or Town 
Way; and that if it could be legally laid out and used as such 
Way, it would be of no manner of use, or benefit to the Town, 
or any considerable part of its inhabitants or to the public, as 
such Way; and that at the same time the Town in such case 
will nevertheless be liable to pay the damages and keep the Way 
in repair without deriving any advantage from it whatever. And 
your Remonstrant insists, that the Way laid out as aforesaid by 
the said Selectmen, cannot be established and maintained in 
reality for a private Way for two, or, at most, a very few persons, 
under the guise of a public Town Way, without committing a 



( n ) 

gross fraud upon that portion of the inhabitants of said Town 
who derive no benefit therefrom, and shall object thereto. And 
your Remonstrant further sug;gests, that there is no necessity 
even for a private Way in the place where the said Town Way 
is laid out, excepting for your Remonstrant. And although cer- 
tain individuals have recently, at three several times, petitioned to 
the selectmen of said town to have such private way laid out for 
thetn, your remonstrant has, as he believes, always been able to 
satisfy them that such way ought not to be laid out. And your 
remonstrant further suggests, that since the way aforesaid was 
laid out as a private way for your remonstrant, nothing has 
occurred to render it necessary or expedient to convert this 
private way, leading only into your remonstrant's premises, 
into a public town way ; but the same reasons now exist for 
the possession and enjoyment of the same by your remonstrant 
as and for a private way, for his use and benefit, as did exist 
at the time when the same was laid out as such private way ; 
and as did, at that time, induce the selectmen to lay the same 
out, and the town to accept the same as such. And your re- 
monstrant insists, that there is no such public exigency in this 
case as requires, or will justify or even authorize the laying out 
and establishment of the said way as a town way upon and into 
the private lands and property of your remonstrant ; and that, 
if the same shall be established as a town way, the property of 
your remonstrant will thereby be taken from him, not for the 
public use, but without any just cause or legal right for so doing. 
And your remonstrant further insists, that the said town way 
cannot be laid out and established as such for the benefit of two, 
or, at most, a few persons, without a plain perversion of the law, 
when there is no necessity, occasion, convenience or benefit to 
the town to use it, and no reasonable or even plausible ground 
for alleging that the public good, or common interest or benefit 
of the town, requires it ; and that, therefore, the town ought not 
to sanction the proceedings of the selectmen in laying the same 
out. And your remonstrant further insists that the damages 
awarded to your remonstrant by the said selectmen are merely 
nominal, and if the said way shall be established as a town way, 
your remonstrant will be compelled to appeal to a jury to assess 
his damages. And your remonstrant further insists, that the 
said town way is not laid out by said selectmen by distinct metes 
and bounds, in such manner as is required by law in such case, 
and that the proceedings of the selectmen inlaying the same out 
are irregular, informal, and wholly unauthorized by law. Where- 
fore your remonstrant prays that the said report may not be ac- 
cepted. 

ROBERT BACON. 
April 5, 1841. 

We the subscribers, certify that the above report of the Select- 
men of Medford was read in public Town Meeting April 5, 
1341. And also Robert Bacon's Remonstrance, and aflcr debate 
a motion was made to indefinitely postpone the whole rubjcct, 
3 



( 18 ) 

which was carried by Fifty seven in the affirmative, and Thirty 
six in the negative. 

Sig?ied 

John Sparrell, Moderator. 
Oliver Blake, Town Clerk. 
Medford, April 5, 1841. 

The above certificate is attached to an attested copy of the 
Selectmen's report of the Town of Medford, laying out a Town 
Way. 

Boston, Feb. 10, 1842. 
Dear Sir : — I have surveyed the road as laid out by the 
Selectmen of the town of Medford, as appears by their report, 
dated March 29, 1841, extending from Grove street to the 
southerly branch of Symmes's River (so called) in said town, 
and find that it extends from the fence on the westerly side of 
the road leading to your Factory, from Grove street to the 
Stowell lot ; and on the easterly side, it extends easterly of your 
fence as it now stands, for a distance of one hundred and fifteen 
feet. The strip of land thus taken, which lies easterly of said 
fence, varies in width from eight and an half feet to nothing. 

Yours truly, 
Alex. VVadsworth, Surveyor. 
Mr. Robert Bacon. 

In this report it is stated that the Selectmen have laid out part 
of the Road over land owned by the heirs of the late Josiah 
Symmes. They also state that the said heirs are content with- 
out any damages. I deny the right of those heirs interfering at 
all with the Road ; and it seems in this I am not without author- 
ity which should have weight with them ; for, by a reference to 
Document marked No. I, it will be seen that the present inge- 
nious counsel for John and Marshall Symmes (Aener Bartlett, 
Esq.,) has given a written opinion which not only asserts my 
undivided right to the way as a private way, but says: "No 
owner of the land, over which the Road is laid, can do any act 
upon it whereby the use and enjoyment of it shall be abridged, 
interrupted, or disturbed, without becoming answerable to me in 
damages therefor." 

It will also appear, by the following certificate from the Pro- 
bate Office, that the land in question was not considered as 
belonging to the heirs of the late Josiah Symmes by the apprai- 
sers of his estate : 

Cerfijicatc of Probate. 

[Extract from the partition of the estate of Josiah Symmes, 
deceased.] 

" One other piece (the pine lot, so called) containing five and 
one half acres, bounded southerly on the road leading to West 
Cambridge, easterly on land of Deacon John Symmes, northerly 
on land of Robert Bacon, westerly on the road leading to the 



( 19 ) 

Factories ; appraised at one hundred and fifty-four dollars, and 
assigned to Josiah Symmcs. ^ff''^^- 

Accepted and recorded January iith, 1833. 
Attest, Isaac Fisk, Register. 

Bartholomew Richardson, ) 
John Symimes, Jr., / Appraisers. 

EzEKiEL Johnson, ) 

Attest, Isaac Fisk, Register. 

The fact of the case is, that I originally purchased the land, 
myself, of the late Josiah Symmes, as I have mentioned 
before, but took no deed of it. (I think that Deacon Symmes 
tvas made acquainted with that fact at the time the road was laid 
out.) Deacon John Symmes, one of the appraisers, did not 
consider it as belonging to the heirs, at the time he appraised 
the estate, as appears from the above extract from the Apprai- 
sers' Report in the Probate Office. It will be seen that this 
pine lot of land was appraised at 28 dollars per acre, and it may 
not be wholly out of place for me to observe that before the 
Appraisers' Report was recorded at the Probate Office, I had 
bought the same land at 70 dollars per acre. The reader may 
make his own comments. 

At the Town Meeting in which the County Commissioners' 
Notice was acted upon, I presented a petition which was objected 
to, and not allowed to be read. A motion was made to place it 
on file with the Commissioners' Notice, and that also was 
rejected. (See page 'id.) 

At the opening of the Meeting in the afternoon, for the Town 
business, the article relating to this Road was first acted on, 
after choosing a Moderator. As soon as the Commissioners' 
Notice was read, I offered my petition, the reading of which 
was refused, on the motion of the same person* who came to me 
the Saturday before with the written proposition from the 
Symmeses, for me to give them, and keep in repair, a Road. 
Under these circumstances, and while the polls continued open 
to receive votes, the town voted to appoint a Committee to 
appear before the Commissioners, with discretionary powers to 
aid or oppose the Road, as they should see fit. At the hearing 
before the Commissioners, two of the Committee of the Town 
appeared. Mr. Turell Tuffts was not present. Mr. John P. 
Clisley was rather in favor of a Town Way, but stated he knew^ 
of no use it would be to the Town to have it a Town Way, it 
kept open as it now was. Mr. Leonard Buckman was strongly 
in favor of a Town Way, but could name no individual in the 
Town who would be accommodated by having it a Town W^ay, 
except the Symmeses. 

The Statute in regard to laying out a Town Way, authorize.** 
the Selectmen to lay out Town Ways "for ihc use of their re- 
spective Totvns," but not for the use of individuals where a pri- 
vate Way is sufficient. All the evidence before the Commis- 

* Mr. John Sparrell. 



( 20 ) 

sioners, proved that this Way was not required for the use of 
the Town of Medford, in any respect whatever, and but for the 
Committee, who spoke as for the Town in favor of the Way, it 
must have appeared, on the part of the Petitioners, as a claim, 
excUisively, for a private Way, and not for the use of the Town. 
The following extracts, from the testimony before the Commis- 
sioners, will place this beyond dispute. 

Extract from Samuel Gardner^s Testimony , before the Commis- 
sioners. 
I do not know of any one owning land who needs the Road 
over Mr. Bacon's private Way, except the Symmes's. I do not 
know that any one else in Town would be accommodated by 
having Mr. Bacon's road a Town Way. The former Way, he 
(Deacon Symmes) had, was a convenient Way. The Way he 
now has, is as convenient as it was before, but it is further. 

Extract from JSToali Johnson's Testimony before the Commisoioners _ 

I do not know of any utility of a road there to the public. 

Extract from Samnel Gragg's Testimony before the Commissioners. 

Mr. Symmes said he had seen the agent of the Rail Road, and 
he was willing a road should be laid out over the land of the 
Rail Road, near the wall. The Symmes's represented, that if 
we laid out this Way, it would be convenient for them. No one 
else showed that they needed it, or that it was wanted for a pub- 
lic Way for the Town. There was no proof that the Symmes's 
had got any right from the Rail Road, to pass on their land. If 
they had any it was a suffrance, and a suffrance from them I do 
not suppose is any better than a suffrance from Mr. Bacon. We 
laid it out for fear Mr. Bacon would stop the Road, but what 
governed us in the decision, was, to accommodate the two Peti- 
tioners. 

Extract from Josiah Symmes's Testimony, before the Commis- 
sioners. 

I never said any thing to the Selectmen about it. I sold out 
fill I had there to Mr. Bacon, and did not reserve any right. I 
do not knGW of any body that would be accommodated by a pub- 
lic Road there but the Symmes's. 

The above Witnesses were introduced to the Commissioners 
by the Petitioners or their Counsel. 

It was stated beibre the Commissioners, that the Petitioners 
now have a good Way by the County Road. The following 
statement of Mr. Holmes will confirm this. 

Boston, Feb. 2, 1832. 
To Robert Bacon, Esq., of Mrdford. 

Sir : — I find by our survey of the distance from the corner, 
near the Messrs. Symmes, that the distance by the County Road 
to the Lock on the Canal, is four hundred and thirty-nine rods, 
and the distance across your lots, three hundred and eighteen 
rods, making a difference of little less than two-fifths of a mile. 
You wished me to notice the state of each Way, which I did, 



( iil ) 

and find the Way by the County Road very good, and the other 
very bad, being uneven and muddy, with other difliculties. 
While we were at the locks, 1 recollect the conversation that 
passed respecting the Messrs. Symnies carting their hay, Sic. 
over the ditJerent Ways. A Mr. Gardiner said he had not known 
them to carry their hay across the lots since the Rail Road has 
been built, but has seen them fetch it out and pass over the 
County Road ; he says he has seen them come across the lots 
with empty carts or wagons, irequently. Youis, kc. 

Natii, Holmes. 

The above measurement has reference to the Petitionei-s' land 
on the West side. On the East side the distance is further, viz., 
from their land to the Canal Bridge, where they cross to get to 
the County Road. 

From the facts thus stated, it is apparent, that in taking away 
my private rights in this manner, it has been done, not for the 
public use of the Town, but for the private use of individuals, 
who have called upon the Town, to aid them in depriving me of 
this right. If it were required for the public use, I should be 
ready to make any reasonable sacrifice, but I can see no justice 
in the Town interfering to take away the rights they had for- 
merly given to one citizen, who, upon the faith of that grant, 
had incurred a heavy expenditure, and give them to another, 
merely to gratify his private wishes. I am, therefore, on every 
principle of justice and equity, entitled to a full remuneration, 
for the expense and trouble I have been put to, in establishing 
this road, and in endeavoring to maintain my right to it, which 
has now been taken away, not for the public good, but for pri- 
vate gratification. The Road being no longer in my control, I 
am subject, at any time, to be deprived of the safe use of it, as I 
was when the Rail Road Corporation, after erecting their bridge 
over it, dug it down, so as to cause the water to stand under it, 
and made such a pitch as to render travel unsafe with a horse 
and light vehicle, which obliged me to fill it up, to make the 
travel safe. All I want or ask, is the use and control of my 
road, as I have had it heretofore, with perfect freedoni to all to 
pass, v/ho may wish to use it. The Town, undoubtedly, have it 
in their power, to cause this to be done, by representing to the 
Commissioners, that the Road is not needed lor the use of the 
Town, and reversing the action of their Committee, through 
whose representation the Commissioners regarded the Town as 
in fact applying for the Road contrary to their former vote, not 
to accept it as a Town Way. 

If the Town cannot see fit to do this, and must assume the 
road as its own, and deprive me of my rights, my only remedy 
is a just compensation in damages. To adjust this, I am desi- 
rous to avoid all litigation, and propose to my fellow citizens, if 
they cannot restore me to my original rights, (which I should 
greatly prefer), to leave the adjustment of our differences in this 
matter, to be decided by an impartial reference. 

Robert Bacon. 
Mtdford, Feb. 26, 1842. 



For the better understanding of the facts connected with the 
origin of this road, and the petitions relating to it, the following 
documents are appended to the foregoing statement. 

To the Citizens of the Town of Medford. 

The subscriber having received notice from the Selectmen 
of the town of Medford of their intention to lay out a toivn way 
over his land, and the subject matter of said way, not as a toivn 
way, but as a private way, having been frequently considered ; 
and much misapprehension existing, as the subscriber believes, 
in relation to the proceedings and the rights of the parties con- 
cerned, he respectfully submits to his fellow citizens, the facts in 
the case. 

Three several petitions have been presented to the Selectmen 
by John Symmes, Marshall Symmes, and others, for a private 
way for their use over the subscriber's land. The first petition 
was dated July 7th 1840, and will be found appended. (Marked 
No. 1.) 

The Selectmen attended to this petition, viewed the premises 
and heard the parties, and no further action was had thereon, as 
will appear from the second petition. 

The second petition was dated the 6th of August 1840, and is 
also appended. (Marked No. 2.) 

The Selectmen again met, viewed the premises, heard the 
parties, and no further action was had thereon, as will appear by 
the third petition. 

The third petition was dated March 11, 1841. On the 20th of 
March the Selectmen met to view the premises for the third 
time. At that meeting the subscriber submitted to the Select- 
men his affidavit, dated March 20th, which is also annexed. 
( See page 9. ) The Selectmen heard the parties, and no 
further action has been had on said application, but the subscri- 
ber has been notified by the Selectmen, that they propose to lay 
out a town way. Their notice, dated March 22, 1841, is as fol- 
lows. 

J^oiice is hereby Given, that the subscribers, Selectmen of 
Medford, in the county of Middlesex, propose to lay out a Town 
way from Grove street in said Medford to the Southerly part or 
branch of Symmes' River, so called, near the sash factory occu- 
pied by Joseph Gould, and nearly in the routoofthe private way 
now leading from said street to Robert Bacon's hat factory, and 
over lands of the heirs of Josiah Symmes, deceased, and of the 
Boston and Lowell Rail Road Corporation, and of Robert Ba- 
con, and that said Selectmen will meet for that purpose on Mon- 



( 23 ) 

day, the 29th day of March inst. at two o'clock P. M. in said 
Grove street at the entrance of said private way leading to said 
hat factory. 

ALEXANDER GREGG, ) Selectmen 
JAMES W. BROOKS, } of 
JUDAH LORING, ) Medford. 

Medford, March Q^d, 1841. 

It will be perceived that the notice now issued to the subscri- 
ber, is for the laying out of a (own way. He is informed by 
the counsel for the private petitioners tiiat there has been no 
petition for a town way, nor has he had any notice of such. All 
the petitions have been for a private way. The last petition is 
signed by John Symmes and Marshall Symmes, and is for a 
private way for their use alone. All the notices previously 
issued upon the three several petitions were for a private way 
as will be seen by the Notices which are appended. (Marked 
No. 5, No. 6, and No. 7.) The subscriber is not aware of any 
interest the town can have in establishing and maintaining such 
a way as is proposed. 

He also believes that the several petitions for a private way, 
having uniformly been found insufficient to authorize it, it would 
not be granted in that form, upon a full knowledge of the facts. 

The present petitioners, John and Marshall Symmes, have for 
more than ten years past enjoyed the use of his private way, by 
suffrage free from expense, and were offered the same freely, at 
the two first hearings before the Selectmen, but the subscriber 
was not willing then, nor is he now, to give up the control of 
his own private way, where no public interest requires it. This 
right of way was granted to him, by the town in 1828, and the 
way was built and has been maintained by him, at great expense. 
The documents appended, (Marked No. 8, 9, and 10) will show 
his original right to this way, which the proposed road, if laid 
out, would in effect take fi-om him. The certificate of the 
Selectmen in 1835, and the opinion of the counsel who is now 
for the petitioners, will show that the right of the private way 
the subscriber now enjoys was fully and legally secured to him. 

The subscriber is also prepared to show by original deeds, that 
the petitioners now have a light of way, and that a better way 
than the one asked for in their petition may be laid out. 

With these facts he leaves it to his fellow citizens to consider 
the merits of the question, if it shall come before them in Town 
Meeting, to approve or disapprove the laying out of the proposed 
town way, reserving to himself all his legal rights in the prem- 
ises. ROBERT BACON. 

Medford, March 25, 1841. 

NO. T. To the Gentlemen, the Selectmen of the totvn oj Med- 
ford, in the County of Middlesex. 

The petition of Elizabeth Symmes, John Symmes, Marshall 
Symmes, and Edmund Symmes, all of said Medford, and Ebene- 
zer Symmes of said Medford and Charles Symmes of 



( 24 ) 

and Loring Emerson of Woburn in said County of Middlesex, 
respectfully show, that they are seized of and hold several pieces 
of land situated in said Medford, betwixt the Boston and Lowell 
Rail Road and Symmes' River, so called; that is to say the said 
Elizabeth, tiiirteen acres, part of the real estate of her late hus- 
band, John Symnies, deceased, by virtue of his last will, for and 
during her life, and the said John, Marshall, Edmund, Ebene- 
zer, and Charles, the remainder in said thirteen acres in fee by 
virtue of the same will, and the said John, Marshall, and Ed- 
mund, another piece there containing five acres, and the said 
John and Marshall another piece containing nine acres, and the 
said Emerson another piece containing five acres, that the 
former way leading from High street to their said lands has been 
partially interrupted by the said Rail Road, and turned along on 
the North side thereof as far as the passai^e way under said 
Rail Road now used by Robert Bacon, and others, where it 
turns and passes under said Rail Road to the south side thereof, 
to land of said Bacon from whence your petitioners have no con- 
venient way to Grove street, and they request you, gentlemen, 
to lay out one for their use, to begin on said Grove street, at or 
near the way now used by said Bacon, and that formerly used 
by the pititioners, and from thence over lands of said Bacon, and 
of Josiah Symmes, of Woburn, aforesaid, so as to meet and con- 
nect with their way under said Rail Road, as aforesaid, agreea- 
bly to the form of the statute in such cases made and provided. 

Dated at Medford, July 7, 1840. 

Signed, Elizabeth Symmes, 

Marshall Symmes, John Symmes, 

Edmund Symmes, Ebenezer Symmes, 

Charles Symmes, Loring Emerson. 

By Abner Bartlett, their Attorney. 

A true copy, attest, C. N. Bacon. 

[NO. IL] To the Selectmen of the Town of Medford, in the 
County of Middlesex. 

Elizabeth Symmes, John Symmes, Marshall Symmes, and 
Edmund Symmes, inhabitants ol' said Town, respectfully repre- 
sent that they are interested in and hold certain lands situated 
in said Medford, betwixt the Boston and Lowell Rail Road, and 
Symmes' River, so called, that is to say, the said Elizabeth as 
devisee as and by the last will of her late husband, John 
Symmes, of said Medford, gentleman, deceased, is seized of 
thirteen acres there for the term of her natural life, and the said 
John, Marshall, and Edmund, as devisees in and by the same 
will are seized of three undivided fifth parts of and in the 
remainder thereof in fee simple, and also of another piece there 
containing five acres, and the said John and Marshall are seized 
of another piece there containing nine acres, that all said pro- 
prietors have no convenient ways from their respective lands 
out towards the public highway called Grove street, in said 
Medford, as far as the Easterly line of the said nine acre lot, of 



( 25 ) 

the said John and Marshall aforesaid, between which line and 
said street, their former way is interrupted by said Rail Road, 
and although the said John and Marshall have a way from 
thence along on the northerly side of said Rail Road, over land 
heretofore granted by them to Robert Bacon, as far as the west- 
erly line of land heretofore owned by Abel Stowell, now belong- 
ing to said Bacon, yet none of the said proprietors have now any 
convenient way from their said lands quite out to said Public 
Highway or street, they therefore request you, gentlemen, to 
lay out a way from the easterly line of said nine acre lot, over 
laud of said Bacon, to the westerly line of the said Stowell and 
for the accommodation of the said Elizabeth and Edmund, and 
from thence over laiid of said Bacon and land of said Rail Road 
Corporation, and of Josiah Symmes, to said Grove street, for 
the accommodation of all said Petitioners, at or near the point 
where the way now used by said Bacon enters said street. 

Elizabeth Symmes, 
John Svmmes, 
Marshall Svmmes, 
Edmund Symmes. 
By Abner Bartlett, their Attorney. 
A true copy: attest, C. N. Bacon. 
Medford, August 6th, 1 840. 

[NO. III.] To the Selectmen of the Toum of Medford, in the 
County of Middlesex. 

John Symmes and Marshall Symmes, both of said Medford, 
Yeomen, respectfully represent that they are seized of and hold 
together in fee, as tenants in common, a piece of pasture and 
tillage land containing nine acres, situated in the north westerly 
part of said town of Medford, betwixt the Boston and Lowell 
Rail Road, and Symmes river so called, also two undivided fifth 
parts of the remainder in fee, of another piece of land, there ad- 
joining to said nine acre lot, subject to the life estate of Elizabeth 
Symmes, widow of John Symmes, deceased, — also two undivided 
third parts of another piece of land there adjoining to said thir- 
teen acre piece, that their ancient way, leading from the public 
highway, now Grove Street in said Medford, to their said lands 
has been intercepted by the passage of the said Rail Road, and 
although they have now a convenient way from their said lands 
along on the northerly side of said Rail Road, over land hereto- 
fore conveyed by them to Robert Bacon as reserved and men- 
tioned in their deed of said land to him, bearing date 25th May, 
1835, as far towards the east as that lot extends, viz: to the wes- 
terly line of land heretofore owned by Abel Stowell, now belong- 
ing to said Bacon, from which last mentioned line your petition- 
ers have no entire way out to said Grove Street; wherfore they 
request you, gentlemen, to lay them out one, to begin upon said 
Grove Street, at or near the point where the way now used by 
said Bacon enters said Street, near where the said ancient way 
used by your petitioners entered said Street, and from thence 
4 



( 26 ) 

over land of said Bacon, or of the heirs of Josiah Symmes deceas- 
ed, or of both, and lands of the proprietors of said Rail Road, to 
the easterly side of the said land, conveyed by the said John and 
Marshall to said Bacon on the north easterly side of said Rail 
Road above mentioned, at the easterly end of their said way, 
reserved in their said deed above mentioned, agreeably to the 
form of the Statutes in such case made and provided. Dated at 
Medford the eleventh day of March, 1841. 

Signed, MARSHALL SYMMES, 

JOHN SYMMES. 
A true copy, attest, C. N. Bacon, 

[NO. v.] To Robert Bacon, of Medford, in the County of Mid- 
dlesex. 

Y'ou are hereby notified that application has been made to us, 
the subscribers, Selectmen of the Town of Medford, to lay out a 
way for the use of Elizabeth Symmes, John Symmes, Marshall 
Symmes, Edmund Symmes, Ebenezer Symmes, Charles Symmes, 
and Loring Emerson, to begin on Grove street, in said Medford, 
at or near the road now used by you, and that formerly used by 
the said applicants, and to extend from thence northerly over 
your land, and land of Josiah Symmes, to the Boston and Lowell 
Rail Road, so as to meet and connect with the passage way 
under said Rail Road, now used by yourself and others ; and 
through which the said applicants have a way leading to their 
respective lands situated betwixt said Rail Road and Symmes* 
River. 

And we have appointed Wednesday, the twenty-second day of 
July, now current, at two o'clock P. M., to meet on the premi- 
ses to lay out the same, when and where you will attend if you 
see cause. 

Given under our hands at Medford, the 8th day of July 1840, 
T. R. PECK, 
MILTON JAMES, 
JAMES O. CURTIS, 

[NO. VI.] To Robert Bacon, of Medford. 

Whereas, Elizabeth Symmes, John Symmes, Marshall 
Symmes, and Edmund Symmes, inhabitants of Medford, in the 
County of Middlesex, have made application to us, the Select- 
men of said Town of Medford, to lay out a road from their lands 
situated in said Medford, betwixt the Boston and Lowell Rail 
Road, and Symmes' River, so called, over lands of Robert 
Bacon, land of said Rail Road Corporation, and of Josiah 
Symmes, to Grove street, in said Medford. You are hereby 
notified that the said Selectmen will meet to consider and act 
upon said application at the bridge where said railroad crosses 
the road leading from said Grove street to Robert Bacon's 
factory, in said Medford, on the twenty-fourth day of August, at 
2 o'clock, P. M. T. R. PECK, ) Selectmen 

MILTON JAMES, ) of 
JAMES O. CURTIS, S Medford. 



( 27 ) 

[NO. VII.] To Robert Bacon, of Med ford, in the County of 

Middlesex. 
Whereas, John Symmes, and Marshall Symmes, both of said 
Medford, have made application to the subscribers, .Selectmen 
of said Medford, to lay out a way for them from Grove street, in 
said Medford, over lands of Robert Racon, and land of the heirs 
of Josiah Symmes, late of said Medford, deceased, and lands of 
the Boston and Lowell Rail Road Corporation, to the lands of 
said petitioners, situated in said Medford, bevvti.\t the said Rail 
Road and Symmes' River, so called. 

You are hereby notified that said Selectmen will meet for that 
purpose in Grove street, in said Medford, where the road lead- 
ing from said Bacon's hat factory enters the said street, on 
Saturday, the twentieth day of March, 1841, at 2 o'clock, P. M. 
ALEXANDER GREGG, ) Selectmen 
JAMES W. BROOKS, } of 
JUDAH LORING. ) Medford. 

Medford, March 12th, 184L 

[NO. VIII.] At a legal Town Meeting in Medford, on the 
first Monday of November, one thousand eight hundred and 
twenty-eight, to hear and act upon the doings of the Selectmen 
relative to laying out a road from Robert Bacon's hat factory in 
said Medford, to the highway leading by Capt. John Symmes' 
dwelling-house, to the market-place, agreeable to the petition of 
said Bacon. 

The Selectmen laid before theTown the following proceedings : 
* To the Selectmen of the Town of Medford, in the County of 
Middlesex. The petition of Robert Bacon, of Boston, in the 
County of Suffolk, hatter, respectfully represents, that he is the 
owner of a piece of land, and water-mill privilege in said Med- 
ford, with a dwelling-house and other buildings and machinery 
thereon, which he improves for the manufacture of hats ; that 
his said establishment is situated a little to the north of the high- 
way leading by the dwelling house of Capt. John Symmes, in 
said Medford, to the market-place there ; that he has no con- 
venient way to pass from his said establishment and highway — 
he therefore requests the Selectmen to lay out a way from his 
said establishment, beginning a little below the dam, at his land, 
running in a southerly direction to the highway aforesaid, at or 
near the great gate, opening from said highway into land of 
Josiah Symmes, agreeably to the form of the statute in such 
case provided. ROBERT BACON. 

Medford, Sept. 30, 1828. 

Toivn of Medford, October SO///, ^. D. 1828. 
We, the undersigned. Selectmen of Medford, upon the fore- 
going petition, proceeded to view the route of the road therein 
prayed for, having first duly notified the proprietors of the lands 
situated in said route, viz : Josiah Symmes, and Abel Stowell, 
who met with us on the occasion, and after due consideration of 
the subject, and of all suggestions and representations made to 



( 28 ) 

US relative thereto, being of opinion that the prayer of the peti- 
tion was reasonable and ought to be granted, we have laid out a 
private way for the use of said Bacon, as follows, viz : beginning 
at a stake on his land on the northerly side of the run of water 
belonging to said Stowell, a little to the east of the bridge, and 
from thence we run a line southerly over land of said Stowell, to 
a stake by land of Josiah Symmes, to the east of the gate in said 
Stowell's fence, from thence nearly in the same course over land 
of said Symmes, to a cedar tree standing about a foot from, and 
next to, the easterly gate, part of the great gate which opens 
into the highway leading by the dwelling-house of Capt. John 
Symmes, as mentioned in said petition, and we have laid out said 
private way on the westerly side of said line, run as aforesaid, 
over the land of said Stowell, twenty feet wide in every part, 
excepting only such place or places as may be straitened or 
narrowed by some building or buildings, now standing partly 
thereon, and over said Symmes' land the whole width or space 
between said line, run as aforesaid, and the land of Samuel 
Hutchinson, on the west thereof. 

TURELL TUFTS, ) Selectmen 

JOHN P. CLISBY, } of 

LEONARD BUCKNAM. ) Medford.' 

All which proceedings and doings of the Selectmen having 
been read and duly considered by the Town, 

Voted, that the same be accepted and recorded. 

A copy of the Town Book of Records in the Town of Med- 
ford. Abner Bartlett, Town Clerk. 

[NO. IX.] To lohom it maij concern. 
The Selectmen of Medford hereby certify, that the said road 
leading from the highway to Robert Bacon's hat factory in 
Medford, was laid out as a private way for his special use and 
benefit, and that the Town of Medford have no interest therein 
which can interfere with said Bacon's enjoyment and control 
thereof, and are under no obligation to support or maintain it. 
TIMOTHY COTTING, 1 c. , , 
ISAAC WELLINGTON, 1 ^^'^^J."™^" 
ISAAC SPRAGUE, f l^ 

S. BLANCHARD, J ^^^^dtord. 

[NO. X.] Medford, March 31s/, 1835. 

Mr. Robert Bacon : — Dear Sir. In answer to your inquiry 
relative to your road leading from your house into the public 
hiorhway in Medford ; I can state for the information of all con- 
cerned, that the road was duly laid out by the Selectmen of 
Medford, on your application, as a private way for your use and 
benefit. It was done according to the form of the Statutes in 
such case made and provided, and submitted to the consideration 
of the town and by the town accepted, and ordered to be recor- 
ded, and I believe is a private way to all intents and purposes of 
the Statute ; it follows, therefore, that no owner of the land over 
which the road is laid can do any act upon it, whereby the use 



( 29 ) 

and enjoyment of it shall be abridged, interrupted, or disturbed, 
without becoming answerable to you in damage therefor. 

ABNER BARTLETT. 

In the matter of the proposal of the Seledmeii of MtiJford, to 
lay out a toivmvay from Grove street in said Midford, to the south- 
erly part of the river. 

Robert Bacon, of said Medford, objects to the laying out of 
any road in the place, way and manner, and fur the purpose 
proposed. 

And he states the following, among other reasons, for his ob- 
jections thereto, namely : — 

Because the way, or the principal part thereof, is proposed to 
be laid out in precisely the same place where the said Bacon has 
a private way granted to him and heretofore laid out for his own 
private use and benelit, by the said Town of Medford. 

Because the said proposed way will not be a thoi-oughfare, and 
cannot be of any use, as a town way, to the town of Medford. 

Because there is no necessity, occasion, convenience, or ben- 
efit to the town, which requires, or will justify the laying out of 
any such town way. 

Because the Selectmen cannot without a violation of duty and 
a plain perversion of the law, lay out such a way for a town 
way, where there can be no reasonable or even plausible ground 
for alleging that the public good or common interest, or benefit 
of the town requires it. 

Because, so far from public necessity and convenience requir- 
ing such town way, the interest of the town, on the contrary, 
requires that no such way should be laid out. 

Because, if the said way shall be laid out, the private property 
of the said Bacon will be taken, not for public use, and without 
any justifiable cause. Robert Bacon. 



At the Town Meeting, Nov. 8, 1841, after the notice from 
the County Commissioners was read, the following Petition was 
offered and rejected, and consequently not acted upon. 

Petition Presented to the Town Meeting and not heard. 

To the Inhabitants of the Town of Medford, in Town Meeting 
assembled : Robert Bacon, of said Town of Medford, respectful- 
ly represents, that since the refusal of the said Town to accept 
and approve and put on record, the Report of the Selectmen of 
the said Town, of a Town Way laid out by the said Selectmen 
on the i29th day of March last, trom Grove Street to the souther- 
ly part, or branch of Symmes river, John Symnies and Marshall 
Symmes, both of said Town of Medford, have presented their 
petition to the County Commissioners of the (Jounty of Middle- 
sex, at their meeting begun and holden at Concord, within and 
for the said County, on the third Tuesday of Sept., A. D. 1841, 
praying that the said Commissioners may approve and allow the 
said Town Way laid out by the Selectmen as aforesaid, and 



( 30 ) 

direct and order the said laying out and their acceptance, to be 
recorded by the Town Clerk of said Town of Medford, where- 
upon the said Commissioners have directed that all persons and 
corporations interested therein, should be notified thereof ; and 
that they will meet to view the premises, and hear the parties, 
on the twelfth day of November, 1841. 

And your Petitioner begs leave respectfully to submit for the 
consideration of the said inhabitants, the following, which among 
other reasons he thinks may properly be urged against the ap- 
proval and allowance of said Town Way laid out as aforesaid, 
and against the putting the same on record, or establishing the 
same as a Town Way. 

And your Petitioner suggests, that as far as it can be ascertain- 
ed from the very indefinite description of the Way laid out as 
aforesaid, the same, or the principal part thereof, is laid out in 
precisely the same place, where the said Town, but a few years 
ago, laid out a private Way for the particular and private use 
and benefit of your Petitioner, upon his petition therefor, setting 
forth the facts relative to the necessity and convenience thereof to 
your Petitioner. 

And your Petitioner further suggests, that the Town Way so 
laid out by the said Selectmen, leads only into the premises of 
your Petitioner, and not through or beyond them, or to any public 
road or thoroughfare, or way through which the public or the in- 
habitants of the town of Medford in general, will have any oc- 
casion to, or can travel or pass. 

And your Petitioner further suggests, that the said Town Way 
was not laid out by the said Selectmen upon the petition of any 
person or persons, nor has any reason been assigned for the lay- 
ing it out, excepting that it will be for the convenience of some 
of the inhabitants of said Town, which your Petitioner suggests 
may mean no more than two of the said inhabitants ; and that 
such reason is quite insufficient to justify the laying out the same 
as a public highway, if it could be so laid out according to the law. 

And your Petitioner further suggests, that from the locality, 
and course, and termination of the Way, it must be obvious to 
every one, that the Way so laid out, cannot be used as a public 
or Town Way; and that if it could be legally laid out and used as 
such Way, it would be of no manner of use or benefit to the 
Town, or any part of its inhabitants, or to the public as such 
Way, unless it should be to the heirs of John Symmes deceas- 
ed ; and your Petitioner believes it will not be deemed of any 
real benefit to them, when it is considered that in order to get 
through this Way a load of wood from their premises, they must 
take down and put up four pairs of bars in going each way, and 
that they cannot pass under the Rail Road Bridge over this Way, 
with a full loud of either wood or hay; and it is believed that all 
the inconveniences will fully ballance the extra distance they will 
have to travel on their own old Road, and also, that they have 
a good Way which is guaranteed to them by the Proprietors of 
the Middlesex Canal, which they used this present year to carry 
ofl^ their crop from their lands ; and also a Way leading from 



( 31 ) 

Grove Street through a Gate over the family land to the Rail 
Road, and across that and a short piece of land of said Proprie- 
tor« to a pair of Bars leading into their own lands, which they 
used the last year in removing their crops from their lands. And 
that they have another Gate opening from Grove Street into 
their lands adjoining your Petitioner's land and leading to the 
Rail Road, which they have only to cross to enter upon their 
own lands, which Way they have used this year to drive their 
cattle to and from their lands. 

And your Petitioner further suggests, that although the said 
Town will not be in any way benefited by the laying out of the 
said Way, if it shall be approved and allowed, they will at the 
same time in such case nevertheless be liable to pay the damages 
and to keep the Way in repair. 

And your Petitioner further insists, that the Way laid out as 
aforesaid by the said Selectmen, cannot be established and main- 
tained in reality for a private Way, for two or at most a few 
persons, under the guise of a public Town Way for the public 
use and benefit, without committing a gross fraud upon that por- 
tion of the inhabitants of said Town, who derive no benefit there- 
from and object thereto. 

And your Petitioner further suggests, that there is no neces- 
sity even for a private Way in the place where the said Towri 
Way is laid out, excepting for your Remonstrant. 

And your Petitioner says, that although certain individuals 
have recently, at three several times, petitioned to the Selectmen 
of the said Town, to have such private Way laid out for them, 
your Petitioner has, as he believes, always been able to satisfy 
them that such Way ought not to be laid out, as he trusts that 
he has also satisfied the said inhabitants heretofore, that it ought 
not to be laid out as a Town Way. 

And your Petitioner suggests, that since the Way aforesaid 
was laid out as a private Way for your Petitioner, nothing has 
occurred to render it necessary or expedient to convert his pri- 
vate Way leading only into your Petitioner's premises, into a 
public Town Way, but the same reasons now exist for the pos- 
session and enjoyment of the same by your Petitioner as and for 
a private Way for his use and benefit, as did exist at the time 
when the same Way was laid out as such private Way, and as 
did at that time induce the Selectmen to lay the same out, and 
the Town to accept the same, as such. 

And your Petitioner insists that there is no such public exigen- 
cy in this case, as requires or will justify, or even authorize the 
laying out and establishment of the said Way as a Town Way, 
upon and into the private lands and property of your Petitioner ; 
and that if the same shall be established as a Town Way, the 
property of your Petitioner will thereby be taken from him, not 
for the public use, but without any just cause or legal right for 
so doing. 

And your Petitioner further insists, that the said Town Way 
cannot be laid out and established, as such, for the benefit of two 
or at most a few persons, without a plain perversion of the law 



( 32 ) 

where there is no necessity, occasion, convenience or benefit to 
the Town to use it, and no reasonable or even plausible ground 
for alleging that the public good or common interest or benefit of 
the Town requires it, and that therefore the town ought not to 
sanction the proceedings of the Selectmen in laying the same out. 

And your Petitioner further insists, that the damages awarded 
to him by the said Selectmen, are merely nominal, and if the 
said Way shall be established as a Town Way, he will be com- 
pelled to appeal to a jury, at considerable expense to all parties, 
to assess the damages. 

And your Petitioner further insists, that the said Town Way 
is not laid out by the said Selectmen by distinct metes and 
bounds, in such manner as is required by law in such case, and 
that the proceedings of the Selectmen in laying the same out, 
are irregular, informal, and wholly unauthorized by law. 

Wherefore your Petitioner prays that the said Inhabitants may 
adhere to their former decision in this case, and will take such 
measures as they may deem proper to prevent the said Town 
Way from being approved and allowed. 

And your Petitioner will ever pray, &c. 

ROBERT BACON. 

Medford, JYovembtr, Bth. 1841. 



The following Certificates were omitted to be inserted in their 
proper place, and are here appended. 

I, the subscriber, certify that the last load of hay brought to 
Mr. Robert Bacon's stable, had to be a part of it unloaded before 
they could pass under the bridge with it. Charles Hatch. 

Medford, Fob. 16, 1842. 

We, the subscribers, certify that we have seen loads of hay 
and wood brought to Mr. Robert Bacon's, which had a part ol 
each to be unloaded before they could pass under the bridge 
with them. Joseph Gould, 

C. G. HuRSEY. 

Medford, Feb. 16, 1842. 

Capt. Clisby stated before the Conunissioners, that he saw a 
load of wood go under the bridge, and there was room to spare. 
The fact is, that he saw part of a load. 



14^ 

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